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Assistant Professor in International Law and International Criminal Law at Leiden University. Specialist in most general topics that allow for reinventing the world around a good bottle of wine (preferably Bordeaux...).
contact: dovjacobs@gmail.com

Tuesday, June 12, 2012

On the 30th
of May, the SCSL sentenced Charles Taylor
to 50 years in prison. The sentencing judgment raises a number of interesting
issues. some commentators, such as William Schabas, or on Opinio Juris, Marina Aksenova, have discussed
the length of the sentence, finding it either too long, or adequate, depending
on the preferred objectives of criminal justice (rehabilitation, retribution,
deterrence). Wherever one stands on this issue, I think that, despite it being common
practice in a number of international judgments, handing down a single sentence
for the entire array of crimes convicted, rather than having them
individualized does not help achieve the goals one ascribes to sentencing.
Indeed, how can there be deterrence, if there is no knowledge that a specific
crime for which a person is convicted carries a specific sentence? There is
also a problem of predictability, because we don’t know what the judges would
have decided if Taylor had for a reason or another been acquitted on one of the
counts. The only thing that can be taken out of the sentencing is that it is
condemnable to generally participate in the events, and the fact that a couple
of crimes more or less took place in the course of things becomes irrelevant.

Which brings me
to the main point I want to address here: the limits of criminal law in
addressing mass atrocities, both because of the question of gravity and
because of the collective dimension of the acts.

The question of gravity

I have often commented here on the difficult assessment of the criteria of
gravity in the ICC framework. In a nutshell, given the fact that the ICC, and
international tribunals in general, are competent to prosecute the gravest
crimes of interest to the international community as a whole, how does one
define an additional notion of gravity within this context? This is made even
more complicated because most people refuse to open the Pandora’s Box of a
hierarchy of crimes, which would be reflected in sentencing. But if all
international crimes are equally grave, then how do you justify given a higher
sentence for one of them rather than the other? It essentially boils down the
moral outrage of the individual judges. The Taylor sentencing judgment
illustrates this point.

Indeed, the
Judges start their assessment by claiming that “the Accused has been found
responsible for aiding and abetting as well as planning some of the most
heinous and brutal crimes recorded in human history” (§70). They then go on to
describe the suffering of the victims, both physically and psychologically,
stating that “their suffering will be life-long” (§72) that the effects on
“society as a whole” are “devastating” and that many Sierra Leoneans, victims
of the crimes, were “no longer productive members of society” (§74).

This is all
very true, but, not too sound cold-hearted, should these elements be factors in
sentencing? Again, the whole rationale
behind the creation of international tribunals is to address crimes which have
these consequences. International crimes usually target vulnerable populations,
are generally widespread and affect a society as a whole. But once these
tribunals exist and function, the gravity of the crimes that justified their
creation should, to a large extent, take a backseat in the daily work of the
institution and the fact that “the Trial Chamber witnessed many survivors
weeping as they testified, a decade after the end of the conflict” (§71) is, to
put it bluntly, irrelevant. Of course, international tribunals operate as an
element of post-conflict social reconstruction, but it does not mean that this
transforms international judges in assessors of whether the crimes are the most
heinous in human history or on the long-term effects on society as a whole. All
international crimes are heinous and leave a mark on human history. All
international crimes cause great suffering to their victims. That this
suffering has been increasingly acknowledged is certainly a good thing, but I
think that international criminal justice, as it gains in maturity, now needs
less hyberbolic victim-oriented rhetoric, not more.

The relationship between individual responsibility and
State responsibility

Beyond that,
one sees here the difficulty of applying a traditional criminal law approach,
with individual responsibility, to situations which are essentially collective,
both in their consequences and their perpetration.

In relation to
that, I was puzzled by one paragraph of the sentencing judgment relating to the
extraterritoriality of the crimes, which the Trial Chamber apparently took into
account as an aggravating factor (§27). What is striking is that the Chamber
did not approach this from a factual point of view, i.e Charles Taylor being in
Liberia took part in crimes being committed in Sierra Leone, a neighboring
State. The Trial Chamber chose to approach this from an international law
perspective, linking this with the principle of non-intervention, which, it
recalls, is a customary law rule established by the ICJ in the Nicaragua case.
The Judges consider that “while these provisions of customary law govern
conduct between States, the Trial Chamber considers that the violation of this
principle by a Head of State individually engaging in criminal conduct can be
taken into account as an aggravating factor” (§27).

This is the
first time I see this in a judgment of an international criminal tribunal. The
sentencing judgment does not reference any other case as support for its
approach, and a quick search in the ICTY database has come up with nothing.
Essentially, the SCSL has pronounced itself on the international responsibility
of Liberia, acting through its head of State. While one can doubt the adequacy
of including such a paragraph in the first place, it would have deserved a
longer development than this ambiguous sentence on a principle that does not
bind individuals, but the violation of which by the said individuals can be
taken into account nonetheless, which is, as it stands, certainly a peculiar
statement in terms of legal reasoning.

The paragraph
does however have the benefit of raising the issue of the link between
individual responsibility and the collective (State) dimension of international
crimes. This is a regular feature of debates in international criminal law,
whether in relation to the common plan or policy requirement for genocide, the
State or organizational policy for crimes against humanity, or the explicit
recognition in the definition of aggression that you need a State act before
prosecuting an individual for the crime. While it is beyond the scope of this
brief commentary to address this adequately, it begs the eternal question that
should never be forgotten when discussing the philosophy of international
criminal law: when does the organizational requirement for the commission of an
international crime actually negate the relevancy of attributing individual
criminal responsibility for that act?